SUPREME COURT

Dominion, Volume 2, Issue 329, 16 October 1908, Page 4

SUPREME COURT

' '' IN BANCO. JUDGMENT SUMMONS PROCEEDINGS.;,MOTION FOR WIUT OF- PROHIBITION. INTERIM^ORDER' GRANTED:-Sitting'^-in - v -IJancb -yesterday ' jftv 'Justice Chapman heard a matter- relating to the caso of Edward John Scarl,,caterpr,.Wellington (plaintiff) ■ Al6>i.'Leo tie Laval, cook, 'Wellington (defendants). This was a motion b,y, plaintiff, for an ; order, that a. wnfc f do issue to the defcrfdiirits • restraining them from further proceedings on an order bira judgment summons made oh .October' 1;'-1!M8, loaVd "being given to defendants to file a statement of defence within the time limited by the rules. The grounds 'ton Vrhich'-th'e application'was based Were sat out'-'ih- tlie statement'of'fcliiim whiclfsistated that defendant do Laval obtained judgment against plaintiff on. Septem... ber 3, 1903, for £12 ss. for wages and costs. On September 11 a'-' judgment summons under,,-,t!((o ~lmpri^!>nmj>nt) , .foi;, ,J)ol|t Abolition •Act-jvaS;.is£.iiv,d summoning, plaintiff to ajjppar she examined.,o|n Octoboivl,-.aftor having examined plaintiff;' Or. M:' Arthur, S.M., made an order that plaintiff be 'committed,- Hp •bW&Mifftfi' Bevcn days unless he sHoMd si'tim'"Bf £13 on or before October 15,. 1008... At, tlifi hearing of the magistrate, re'i fused to hoar evidence oa a pf .fraud;, alleged.in .the summon#.'.'Plaintiff, was--not ' in any'Hvify''guilty of fraud in his "dealing! with do Laval, whether in*" -obtaining- dc "to *;.receipt" f<SF Wagp^j'oi 'iriteVVal-^l^tttWfivtTi^iif-ing of "judgment and . tlfo 'Msi'f iri'if" 'bl the judgment. „ suxnmows-plain^ifF_v tained o'/ideflco ofctwo iliclcpaficfiyitl witnesses whose alleg&J. provec

directly that plaintiff was not guilty of fraud in with tho matter. Plaintiff was, hot said, anxious to liavo tho question of fraud alleged in thcsuninions tried in pro-' per form, and was a:dvised and verily belielcd that ho entitled to'sucli trial. With roforbfTWr*to tho charge of al-' leg'cd fraud plaintiff was asked at the examination whether ho had not committed tlioft of the receipt for wages, and; replied that ho had not. No other evidence was given on that point. In regard to tho question of plaintiff's means plaintiff deposed that ho was an undischarged bankrupt who ■ had been ximplpyfid. wife at £2. per Mioek, that his .wa'gfc? had not been paid by his wi'?d; iihM thai'-lio had no'moans or money' whjitSoeveVi n\Tliis '.jvafj. tho only evidence tpJiis means. Plaintiff had a wife and five children, but was not, 'li'fc lalleged, asked during tho proceedings as to Jrt'hother hoJiad a family or as to the sum roasiWlibly for the support of his was.'ontiwly. without means, and jUpatyp..tifo,p»y,.,^hc r judgment debt, being an 'undischarged bahkrupt now out of emplovment 1 , iAiiiu'diat'ely prior to the making! of the order having sold her business of restaurant-keeper in Willis Street for £2, I pMittj,!f i J l ßcl tq, l? iipport himself and his family,'and to nav house rent. In conclusion, ho js'tatcu that lsc' ! waS''adviscd and believed the! ordWtfiifißliTia'dCi'qontrary to law and witlioutj jurisdiction or justification. Wherefore lie iprfty&d'for ftiwritjTjfe prohibition, restraming- on tlio order. Plaintiff.'who' was'not' represented by coun;sel/ said was ex'parte. An order' if&r; rsiiwit was required until ;a, il»u;t-J)SraC". 1)0 heard. Tho had ucon"t«ikcn m order that tlio decision of tho magistrate mip:lit be reviewed. A Stay of proceedings was desired in order \tjinjt in default of payment ho might not bo "imprisoned. His Honour: When was the statement of "ciaim served on defendants'—Plaintiff: It has 'not been served. . Why ?—I have been advised that it is not ''•necessary to servo it until the Court gives 'the! nsijriiission asked for in the affidavit. Wliy fs it that you are not represented hv '''cbn'iisol?—l cannot afford to be represented. advised von P—Mr. Dunn. .'iils this the matter winch was brought before ' • Didn't I direct, that the statement of claim "Ishofuld j)e served?—l,s jyas hot aware.of that faCt. ;- - !■. : ''' ~ ■;Hi6 Honour then saidhe would grant a stay' •of proceedings until Saturday mornine. Plainft'ffjwoiilcl hal-e l^!) 1 sfirve'fioti'co of motion that 'day in (jonncKStion'nWthrthe application to bo heard on Saturday,' an,, application for.a furthor interim order. •